QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] QIRC 153 |
PARTIES: | Wanninayake, Dushanthi (Applicant) v State of Queensland (Department of Natural Resources and Mines) (Respondent) |
CASE NOS: | B/2015/19 |
PROCEEDING: | Application for a Stay |
DELIVERED ON: | 19 August 2015 |
HEARING DATE: | 30 June 2015 |
HEARD AT: | Brisbane |
MEMBER: | Vice President Linnane |
ORDERS: |
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CATCHWORDS | INDUSTRIAL LAW – APPLICATION FOR A STAY OF DECISION OF COMMISSION – Decision of Commission was to dismiss application for reinstatement – Nothing to stay – Application dismissed under s 331(b)(ii) of Act. |
CASES: | Industrial Relations Act 1999, s 331(b)(ii), 342(1), 342(3), 347 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 020. Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] QIRC 084. Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 215. |
APPEARANCES: | Ms D. Wanninayake, the Applicant, in person Mr J. Merrell, Counsel instructed by Crown Law for the Respondent. |
Decision
"Upon the applicant commencing her submissions this afternoon, she informed me that she had also filed an appeal from the decision of the Full Bench and that that appeal was filed in early June. I have not seen that appeal; nor, as I understand it, has Mr Merrell, who appears for the respondent. In any event, it has not been listed for hearing today."
Application for Stay in B/2015/19 filed 19 June 2015
"(a) Reopen the previous Application to appeal matter No. C/2015/2 filed on 5 January 2015.
(b) The whole of the decision of matter No TD/2013/109 to be reviewed and needs;
"Now, if I can deal with B19 first. That is the application for a stay. What are you seeking to stay?"
and Ms Wanninayake responded:
"The decision that TD/2013/109…"
and further:
"The whole proceeding needs to be reviewed"
later Ms Wanninayake stated;
" … my application for stay is to re-hear the decision and review the decision."
however shortly thereafter when asked what she was trying to stay, Ms Wanninayake stated:
"The decision itself TD/2013/109 that was made by Deputy President Kaufman."
[8] I then suggested to Ms Wanninayake that if I was to grant her application for a stay what effect would the stay have, and she responded:
"Then that decision would be stayed, your Honour."
[9] It was then explained to Ms Wanninayake that if she thought the decision of the Deputy President was wrong her redress lay in an appeal against the decision. Further on, Ms Wanninayake stated that she wanted a stay because "the decision says that my decision [sic] is fair". Essentially Ms Wanninayake wanted to stay the Deputy President's decision because she didn't think the termination of her employment was fair."
[10] She then indicated that she wished to utilise s 347 of the Industrial Relations Act 1999 (Act). Section 347 of the Act provides as follows:
"347 Stay of decision appealed against
On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending -
[11] As Ms Wanninayake's application was dismissed by the Deputy President, s 347 of the Act does not give her any opportunity to seek and be granted a stay. It is meaningless. It was explained to Ms Wanninayake that if she was of the opinion that the decision of the Deputy President was wrong then the course available to her was to appeal that decision. This she did in C/2015/2 - an appeal to the Full Bench of the Commission. This appeal was filed within the legislative timeframe.
[12] Deputy President Kaufman dismissed Ms Wanninayake's application for reinstatement on 16 December 2014 in Wanninayake v State of Queensland (Department of Natural Resources and Mines).[3] As at 30 June 2015 there was nothing to stay. Had the Deputy President reinstated Ms Wanninayake and the State of Queensland sought to appeal that decision, then the State of Queensland may have sought to stay the reinstatement aspect of the decision pending the determination of the appeal. That is not the case with Ms Wanninayake's Application for Stay.
[13] The Application for Stay referred to matter TD/2013/109. At the hearing on 30 June 2015 Ms Wanninayake could give no basis whatsoever for her Application for a Stay. The material contained in the Application did not support any such application and there was nothing to stay. It was for these reasons that I indicated to Ms Wanninayake, on 30 June 2015, that I would strike B/2015/19 out pursuant to s 331(b)(ii) of the Act as it was not desirable or in the public interest for this application to continue. This was conveyed to Ms Wanninayake at page 1-15 of the transcript of the hearing on 30 June 2015 and again at page 1-30 of the transcript. Ms Wanninayake was further advised at page 1-30 of the transcript that if she wanted to stay something she should file an appropriate application. The dismissal of this application was re-confirmed at page 1-31 of the transcript where I stated:
"Yes. The stay, I've said, will be dismissed under section 331(b)(ii) of the Act, that is, it's not in the public interest to further hear the matter because it can't stay anything."
[14] Ms Wanninayake was again advised that the decision of Deputy President Kaufman was final unless overturned on appeal. A stay of his decision would not overturn the decision. The termination of Ms Wanninayake's employment with the Department of Natural Resources and Mines was found by Deputy President Kaufman not to be harsh, unjust or unreasonable nor for an unlawful reason. Unless she successfully appealed that decision Ms Wanninayake was advised that the finding that her dismissal was not unfair would remain.
Application to the Industrial Court and the Commission to Appeal (Re-open Matter C/2015/2) filed on 23 June 2015
[15] This Application in C/2015/27 is titled Application to Appeal (Re-Open matter No C/2015/2). C/2015/2 was an application to a Full Bench of the Commission to appeal the decision of Deputy President Kaufman to dismiss Ms Wanninayake's application for reinstatement. In any appeal to a Full Bench of the Commission under s 342(1) of the Act, an application for leave to appeal to a Full Bench of the Commission must be made. Ms Wanninayake's application for leave to appeal to the Full Bench was C/2015/3. C/2015/3 was heard by a Full Bench of the Commission on 20 February 2015.
[16] The Full Bench delivered its decision in Wanninayake v State of Queensland (Department of Natural Resources and Mines)[4] on 14 May 2015 and dismissed Ms Wanninayake's application for leave to appeal to a Full Bench of the Commission. Having so dismissed her application for leave to appeal to a Full Bench in C/2015/3, there was no ability for the Full Bench to deal with C/2015/2 as she had not satisfied the Full Bench that there was sufficient public interest in her appeal proceeding. C/2015/2 was thus also dismissed in that proceeding. There is thus nothing to re-open in C/2015/2.
[17] At the hearing on 30 June 2015 I attempted to have Ms Wanninayake outline what she wanted from her Application in C/2015/27. On page 1-5 of the transcript Ms Wanninayake agreed that she wanted to appeal the decision of Deputy President Kaufman. I then stated that she had "already tried to appeal that to a full bench". Ms Wanninayake responded "I want to appeal in the Court, not the Commission". At page 1-6 of the transcript Ms Wanninayake was asked the following question:
"What are you seeking to appeal? Are you seeking to appeal the decision of the full bench that says there was no public interest in your appeal, or are you seeking to appeal the decision of Deputy President Kaufman?"
and her response was:
"The seeking to appeal the Deputy President Kaufman."
[18] I then responded as follows:
"But you've already sought to appeal that - to the full bench of the Commission."
and her response was:
"But I'm going to appeal this one, your Honour, to the Court - Industrial Court."
[19] I then raised with Ms Wanninayake the difficulty she faced in that she would need to seek an extension of time within which to appeal the decision given by the Deputy President on 16 December 2014 to the Industrial Court when this application was filed on 23 June 2015 i.e. well outside the time limitation period. Ms Wanninayake then went on to state that both C/2015/27 and B/2015/19 were directed to the Industrial Court. Ms Wanninayake submitted that she had filed an application to appeal to the Industrial Court within time i.e. in January 2015. The Application in C/2015/2 is clearly an appeal to a Full Bench of the Commission from the whole of the decision of Deputy President Kaufman in TD/2013/109.
[20] Ms Wanninayake was under no misapprehension whatsoever of what her application in C/2015/2 was about. The first three grounds of appeal are as follows:
"1. It is submitted that there are grounds to appeal this decision on the basis of public interest. I respectfully submit that this decision goes further than simply an error of fact and this decision is in the public interest as it raises significant questions regarding the Queensland Government's policies and how they are effectively administered, utilised and adhered to regarding performance management.
[21] The "public interest" is an important element in any appeal to a Full Bench of the Commission given the provisions of s 342(3) of the Act. The issue does not arise in appeals to the Industrial Court where appeals lie on error of law or excess, or want, of jurisdiction.
[22] As mentioned previously, Ms Wanninayake's application in C/2015/27 sought to re-open C/2015/2 which was never heard because the Full Bench of the Commission dismissed that application when Ms Wanninayake was unsuccessful in her application for leave to appeal to a Full Bench of the Commission in C/2015/3. On 30 June 2015, it was explained to Ms Wanninayake that if her application in C/2015/27 was an appeal to the Industrial Court against the decision of Deputy President Kaufman then that ground of appeal (i.e. the re-opening of C/2015/2) could not remain as C/2015/2 was clearly an application to the Commission. Ms Wanninayake agreed with this on transcript.
[23] Ms Wanninayake continued to press the point that her application to appeal in C/2015/2 was not an appeal to the Full Bench of the Commission but was an appeal to the Industrial Court. Her application in C/2015/2, on its face, was clearly an application to the Commission and not the Industrial Court. Ms Wanninayake then submitted an alternative position i.e. that C/2015/2 was an appeal to the Full Bench of the Commission and to the Industrial Court. No issue was taken by Ms Wanninayake or her legal representation at either the mention of C/2015/2 and C/2015/3 before me, or at the hearing of C/2015/3 before the Full Bench, that C/2015/2 was meant to be an appeal to the Industrial Court rather than an appeal to the Full Bench of the Commission.
[24] In the course of the hearing on 30 June 2015, I went through a number of the issues outlined in the C/2015/27 application indicating that Ms Wanninayake might consider amendments to that application if, in fact, she wanted C/2015/27 to be an appeal to the Industrial Court e.g. her first ground to "re-open the previous Application to appeal matter No C/2015/2 submitted on 5 January 2015". I further advised Ms Wanninayake that she could leave C/2015/27 as it stood, and I would refer that matter to the President of the Industrial Court. I then asked whether Ms Wanninayake wanted me to amend C/2015/27 simply to delete from the heading and from the section titled "Appeal to" the words "Queensland Industrial Relations Commission" so that the matter was clearly an appeal to the Industrial Court. Ms Wanninayake agreed with that at transcript page 1-21. Any further amendments were left with Ms Wanninayake to make should she so desire.
[25] It was then reconfirmed that Ms Wanninayake would need to make application to extend the time within which to file her Application to Appeal to the Industrial Court. She was further advised that, in any such application, she would need to explain the reason for the delay. Ms Wanninayake was further advised that until such time as she filed her application for an extension of time within which to appeal to the Industrial Court, the application to appeal to the Industrial Court in C/2015/27 would remain in the Industrial Registry.
[26] It became clear during the course of the hearing on 30 June 2015 that Ms Wanninayake understood an appeal to be a review of the whole of the decision of the Deputy President. She clearly did not understand the process of appeal to the Industrial Court. Ms Wanninayake was advised that she needed to identify errors of law in the reasoning of the Deputy President in any appeal to the Industrial Court.
[27] Towards the end of the hearing on 30 June 2015, Ms Wanninayake asked whether she could re-open C/2015/2. I indicated to her that C/2015/2 was never heard therefore she could not re-open the matter as she had not got over the hurdle of showing that an appeal to the Full Bench of the Commission was warranted in the public interest. I further pointed out that nothing in her application in C/2015/27 identified any element of public interest that was not raised before the Full Bench of the Commission in C/2015/3. Ms Wanninayake was further advised that the only decision that could be appealed was the decision of the Full Bench to dismiss her application in C/2015/3 although any appeal at this time was outside the time limitation period.
[28] The final position arrived at on 30 June 2015 in respect of C/2015/27 was identified by me at page 1-31 of the transcript as follows:
"So my understanding - and you told me to cross out Commission in two places plus the full bench, and it's an appeal to the court against the decision of Deputy President Kaufman, and it's out of time, and you've got to seek the leave of the Court to extend the time within which to appeal before anything can happen."
Ms Wanninayake's response was "Yes, your Honour."
Conclusion
[29] Subsequently, Ms Wanninayake filed an Application to the Industrial Court to extend the time within which to appeal the Deputy President's decision i.e. C/2015/29. That Application was heard by the President on 27 July 2015 and was dismissed in Wanninayake v State of Queensland (Department of Natural Resources and Mines).[5]
[30] The current position with all matters lodged by Ms Wanninayake in the Industrial Court and/or the Commission is as follows:
[31] There are no applications and/or appeals by Ms Wanninayake on foot in either the Industrial Court or the Commission. Ms Wanninayake, in informing the President on 27 July 2015 that she had "also filed an appeal from the decision of the Full Bench and that that appeal was filed in early June" was incorrect. It is no wonder that Mr Merrell, Counsel for the State of Queensland (Department of Natural Resources and Mines) had not seen any such appeal, as C/2015/27 was the subject of the hearing on 30 June 2015 where Ms Wanninayake clearly stated on any number of occasions that she wanted that application to be an appeal to the Industrial Court. No appeal against the decision of the Full Bench of the Commission in C/2015/3 has been filed by Ms Wanninayake.
[1] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 020.
[2] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 215.
[3] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 215.
[4] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] QIRC 084.
[5] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 020.
[6] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 215.
[7] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] QIRC 084.
[8] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] QIRC 084.
[9] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 020.
[10] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 020.
